Path 2

Path 2

Torture Trail

June 15, 2004

Senator Patrick Leahy: "The tone [on torture] was set at the top."photo: www.house.gov

The legal opinions that the Pentagon and the Justice Department seek to keep secret . . . lay out a shocking and immoral set of justifications for torture. . . . The president of the United States was declared empowered to disregard U.S. and international law and order the torture of foreign prisoners.—“Legalizing Torture,” Washington Post editorial, June 9

This administration rejects torture.—Attorney General John Ashcroft, testifying before the Senate Judiciary Committee, June 8

It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.—Tom Malinowski, Human Rights Watch

The investigation by the Pentagon of the abuses veering on torture at Abu Ghraib prison in Iraq has so far collared only seven very low-level officers. And George W. Bush has told the nation that only these “bad apples” caused the worldwide revulsion fueled by the photographs of snarling dogs and naked prisoners. There are also the disingenuous assertions by Donald Rumsfeld that this nation treats “detainees” in the spirit of the Geneva Conventions.

However, as Senator Patrick Leahy, Democrat of Vermont, said after John Ashcroft refused to give the Judiciary Committee—of which Leahy is the ranking minority member—a copy of the report that served as a blueprint for the administration protocols approving torture:

“If some in the administration believe that prosecuting privates and sergeants [on conditions at Abu Ghraib] will make this scandal go away, they are mistaken. The tone was set at the top, and we need to track the development of this administration’s policy on the use of torture.”

This story—which may, if followed up by the media, be the most damaging illumination yet of lawless acts by the Bush administration in the war on terrorism—was broken on the front page of the June 7 Wall Street Journal, where the news staff is insistently independent of that paper’s editorials, which dismissed the story on June 11. Also valuable in the development of this smoldering story is Michael Ratner, president of the Center for Constitutional Rights in New York, an organization which, since 9-11, has been a persistent litigator on behalf of the Constitution against the government.

Jess Bravin’s Wall Street Journal report, which alerted much of the media, began:

“Bush administration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn’t be prosecuted by the Justice Department.” (Emphasis added.)

Bravin continued: “The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantánamo Bay complained in late 2002 that with conventional methods they weren’t getting enough information from prisoners.”

I have a full copy of this report (it is available online at ccr-ny.org), which John Ashcroft, on June 8, refused to turn over to the Senate Judiciary Committee. It’s titled “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations. 6 March 2003.”

Among other news organizations that also have this report are The Wall Street Journal, Financial Times, and The Washington Post. To say the least, the administration’s cover-up is not succeeding. The torture advisories contain this smoking gun:

“In order to respect the president’s inherent constitutional authority to manage a military campaign . . . (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority.” (Emphasis added. The parentheses are in the original report.)

This 2003 draft report was assembled under the direction of the Defense Department’s general counsel, William Haynes II, and The Wall Street Journal noted, the working group composed of top civilian and uniformed lawyers from each military branch, in consultation with the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency, and other intelligence agencies. It isn’t known if President Bush has ever seen the report.

Bush says he doesn’t remember if he did, but his directive is to obey the law.

Will there be congressional subpoenas for the leading members of this working group who deliberately bypassed the 1949 Geneva Conventions as well as the U.N. Convention Against Torture, which this nation signed in 1994, and the Torture Statute passed by Congress that prohibits torture anywhere outside the United States?

The Republican-controlled Congress and fervent administration supporter Orrin Hatch, Republican of Utah, who is chairman of the Senate Judiciary Committee, do not appear eager to exercise their constitutional mandate of accountability.

As for the president, he is the commander in chief and so the ultimate authority for this report. He says he doesn’t read newspapers, but is it conceivable that this report—and a 2002 analysis by Ashcroft’s Justice Department also selectively justifying torture—were withheld from him?

In a constitutional democracy, shouldn’t the people know that torture is being authorized by our government, ultimately in our name? Pat Leahy is on the case, but where are senators Schumer and Clinton?

Elizabeth Rindskopf-Parker, former general counsel to the National Security Agency and the CIA in Republican administrations, now dean of the McGeorge School of Law, tells Financial Times that these memos “appear better designed to defending criminals than to guiding the policies of the world’s most powerful nation.”